The University of Chicago Law School Faculty Blog

The Dover Intelligent Design Decision, Part III: Compatibility

The court’s opinion in Kitzmiller v. Dover Area School District declares, “Both Defendants and many of the leading proponents of ID make a bedrock assumption which is utterly false.  Their presupposition is that evolutionary theory is antithetical to a belief in the existence of a supreme being and to religion in general.”  The court speaks repeatedly of this “false duality” and “contrived dualism.” 

Natural selection is compatible with the idea that a supreme being created life in a one-celled organism and then stepped aside.  Darwin’s description of life as “having been originally breathed by the Creator into a few forms or into one” hinted at this quasi-deist vision.  The mechanism that evolutionary biologists posit to explain later developments, however, attributes all life forms other than the first to random mutation against an environmental background composed, in significant part, of other life forms shaped by random mutation.  Complex life forms are the product of a mindless rather than a purposeful process.  All of our own species’ characteristics, mental and physical, exist only because, at some point, they furthered our ancestors’ reproductive success.  Although evolution itself poses no challenge to the idea that a purposeful process shaped life as it grew more complex, natural selection does.  The emergence of humans and hippopotamuses from a one-celled organism over the course of 3.5 billion years could not have been the product of both a purposeful process and an entirely random process.  Try as one might to embrace both theism and Darwinism, purpose and chance remain antithetical.  Well-meaning efforts to bridge the chasm fail whenever it rains.

The President's "Inherent" Power

The Bush Administration has made strong claims about the "inherent" power of the President. These claims are not unprecedented, and they are rarely if ever preposterous; but they are nonetheless bold. Thus it has been argued that the President's inherent authority includes (1) the power to go to war without congressional authorization, (2) the power to engage in foreign surveillance, (3) the power to detain "enemy combatants," including Americans captured on American soil, without access to a lawyer or to hearings, and (4) the power to engage in coercive interrogation of enemies, even torture, when necessary.

The Dover Intelligent Design Decision, Part II: Of Science and Religion

The court and both parties in Kitzmiller v. Dover Area School District battled about whether intelligent design was science or religion.  None of them showed any interest in the right answer – a little (or a lot) of both. 

The experts who testified in favor of ID insisted that, as far as their theory went, the intelligent designer might be someone other than God.  But come on.  If you discovered the intelligent designer of every life form on the planet (including you), what would you call him?  Probably not Uncle Zeke.

The Dover Intelligent Design Decision, Part I: Of Motive, Effect, and History

Kitzmiller v. Dover Area School District forbids a local school board “from requiring teachers to refer to a religious, alternative theory known as ID.”  The first amendment makes intelligent design unmentionable in the classroom.  While professing to offer no opinion concerning the truth of intelligent design, the court consistently reveals its contempt for this theory. 

Most of the Dover opinion says in effect to the proponents of intelligent design, “We know who you are.  You’re Bible-thumpers.”  The opinion begins, “The religious movement known as Fundamentalism began in nineteenth century America as a response to social changes, new religious thought, and Darwinism.  Religiously motivated groups pushed state legislatures to adopt laws prohibiting public schools from teaching evolution, culminating in the Scopes ‘monkey trial’ of 1925.”  When the Fundamentalists (the court often capitalizes the word) found themselves unable to ban Darwinism, they championed “balanced treatment,” then “creation science,” and finally “intelligent design.”  According to the court, the agenda never changed.  Dover is simply Scopes trial redux.  The proponents of intelligent design are guilty by association, and today’s yahoos are merely yesterday’s reincarnated. 

Three Cheers for Calvin Coolidge

Now that New York City is in a midst of a transit strike that has caused immediate and palpable hardship to millions of its citizens, I think that we should tip our hats in the direction of Calvin Coolidge, who, as governor of Massachusetts said, “there is no right to strike against the public safety by anyone, anywhere, anytime.”

Presidential Wiretapping: Disaggregating the Issues

The legal questions raised by President Bush's wiretapping seem to me complex, not simple. Here is a rough guide: (1) Did the AUMF authorize his action? (2) If not, does the Constitution give the President inherent authority to do what he did? (3) If the answer to (1) or (2) is yes, does his action violate the Foreign Intelligence Surveillance Act (FISA)? (4) If the answer to (3) is yes, is FISA constitutional, or is it inconsistent with the President's inherent authority? (5) If the answer to (1) or (2) is yes, does the wiretapping nonetheless violate the Fourth Amendment?

King George's Constitution

In early 2002, President Bush secretly authorized the National Security Agency to monitor international telephone calls and international email messages without any showing of probable cause to believe that a participant in the communication was involved in unlawful or terrorist activity and without requiring a search warrant from a court of law. This action was a direct violation of federal law and the United States Constitution.

The Fourth Amendment ordinarily prohibits any search, which includes interception of telephone and email messages, without probable cause and a judicial warrant. (The “ordinarily” refers to some very narrow exceptions, inapplicable here, for unintrusive searches and for situations where officer safety or the need to act instantly justifies a departure from the usual requirements.) Each of these requirements - probable cause and a judicial warrant - plays a critical role in our constitutional scheme. Expansive government surveillance of a nation's citizens (think 1984 or of the Soviet Union) can undermine privacy, autonomy, independence, spontaneity, openness, dissent, and the general sense of freedom that is essential to a self-governing society. And, of course, surveillance is a powerful tool with which to suppress political opposition. The Framers of the Constitution clearly understood these dangers and therefore sharply limited the circumstances in which the government could intrude on individual privacy.

Presidential Wiretaps

The discussion of wiretapping by the President, without court approval, raises a number of important and interesting legal issues. According to CNN, Attorney General Gonzales recently said, "There were many people, many lawyers within the administration who advised the president that he had an inherent authority as commander in chief under the Constitution to engage in" this kind of "signal intelligence of our enemy." The Attorney General added, "We also believe that the authorization to use force, which was passed by the Congress in the days following the attacks of September 11, constituted additional authorization for the president to engage in this kind of signal intelligence."

I want to suggest here that this last statement is more plausible than it might seem at first glance. If the statement is indeed correct, some legal questions certainly remain, but at least we will have made progress.

Copyright, Music Lyrics, and Neil Diamond

Last week, Warner/Chappell apparently sent a cease & desist letter to a firm whose software helps users find and use song lyrics. That letter has touched off a flurry of discussion in academic circles about how copyright law should treat song lyrics. It seems that almost everyone agrees that I can listen to my favorite Neil Diamond song and write down the lyrics for my own enjoyment. Reasonable minds disagree, however, over how much outsiders can help me, for instance by running a website that lists song lyrics or providing a tool that helps me find song lyrics online.

I think the merits here are tricky, but the battle provides an opportunity to sharpen a point often missed in discussions of fair use: a use might be fair when inefficient and awkward, but not fair at all when efficient, large-scale and streamlined.

An example: photocopying.

SonyBMG's DRM Mistake

The last few weeks have been bad ones for SonyBMG. The music giant included copy-protection software on many of its recent CDs, and that software turned out to expose purchasers to significant security risks. In one case, for example, the software hid itself on the purchaser's computer in order to stop the purchaser from disabling the software; but now virus writers can use that "hidden" section to sneak in other unwanted code, like dangerous viruses. The result has been a PR disaster, a massive recall of protected CDs, and now also a series of filed lawsuits. Ed Felten has a fantastic series of posts on all this and I would encourage anyone with interest in the details to read those posts with care.

On the legal side, meanwhile, the EFF's Fred von Lohmann has been offering a great deal of commentary on the controversy, and it is no overstatement to say that Fred is downright gleeful to see SonyBMG stumble in this way. Writes Fred:

So here's to the eventual demise of DRM [digital rights management] on digital music. Once the DRM is gone, we can see what a real, robust, competitive digital music marketplace looks like.

I think, by contrast, that Fred's enthusiasm is at best premature and most likely embarrassingly wrong. Despite what Fred says, this is not the end of DRM, and the end of DRM is certainly not something to celebrate in any event.